Senate braces for possible filibuster over judicial nominee

Democrats and the White House are preparing for perhaps the most divisive fight yet with Republicans over an Obama administration judicial nominee.

The Senate will conduct a procedural vote Thursday on the long-stalled nomination of UC Berkeley law professor Goodwin Liu to the U.S. 9th Circuit Court of Appeals in San Francisco.

The motion to cut off debate needs 60 votes to pass, which means at least seven Republicans would have to cross party lines in order for Liu to receive a simple up-or-down vote on the floor. Otherwise, the GOP will filibuster an Obama judicial nominee for the first time, though other nominees have dropped out or have not been put up to a vote.

As of late Wednesday, it appeared increasingly unlikely that Democrats would be able to corral those votes, meaning Liu’s nomination — in limbo for more than a year — could effectively be scuttled. Asian American interest groups, in particular, were fighting for Liu’s confirmation.


“Having Goodwin Liu on the court as an Asian American is incredibly important,” said Vincent Eng of the Asian American Justice Center in Washington. There is only one other Asian American on a federal appeals court, Denny Chin in New York.

“He’s the best and brightest the community has to offer,” Eng said of Liu. He said a GOP filibuster would be a “direct slap in the face” to Asian Americans nationwide.

Conservatives fiercely oppose Liu, saying he favors identifying new individual rights in the Constitution and would tilt the 9th Circuit Court in an even more liberal direction. They also argue that an academic with no practical legal experience is unfit for a lifetime appointment.

Sens. Charles E. Grassley (R-Iowa) and Jeff Sessions (R-Ala.), the current and former ranking members of the Senate Judiciary Committee, said Wednesday that Liu, if confirmed by the Senate, “would advance his progressive philosophy for years to come, doing incalculable damage to the constitutional system of limited government and federalism envisioned by our Founding Fathers.”

Liu’s supporters say he is a brilliant legal mind who follows judicial precedent and resides in the mainstream of American jurisprudence. And at 40, if he were to ascend to the 9th Circuit, it’s highly possible he could ultimately become the first Asian American nominee to the Supreme Court.

Liu, whose cause has been championed not just by progressive groups but also by some prominent conservative legal scholars, including former Whitewater independent counsel Kenneth Starr, cleared the Judiciary Committee in April for the third time, but by a straight 10-8 party-line vote.

The White House generally has shied away from the kind of incendiary and partisan fights over appeals court judges that were a staple of the George W. Bush administration, preferring moderate nominees with extensive experience in the federal courts.

Indeed, while Supreme Court nominees Sonia Sotomayor and Elena Kagan were both heavily criticized by conservative groups, neither was in serious danger of being filibustered by the GOP.

But despite the fact that White House Counsel Bob Bauer was actively lobbying Wednesday on Capitol Hill, Liu is likely to be a different story. Beyond their views of his fitness for a lifetime post, some Republicans are still smarting over Liu’s testimony against Supreme Court nominee Samuel A. Alito Jr. in 2006.

“With his aggressive left-wing ideology and raw inexperience, Goodwin Liu is the rare nominee who would make the 9th Circuit worse than it already is. Senate Republicans need to unite to defeat his nomination,” said M. Edward Whelan of the Ethics and Public Policy Center, which champions conservative judicial nominees.

In the late 1990s, Senate Republicans delayed the nomination of Sotomayor to the appeals court in New York over concerns in part that she would ultimately reach the high court. And indeed, President Obama nominated her to be the court’s first Latino justice in 2009.

Lisa Mascaro in the Washington Bureau contributed to this report.